divorce process - Page 9

The importance of pet nups during divorce proceedings
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Importance of ‘Pet Nups’ Highlighted by Former Couple Ant McPartlin and Lisa Armstrong

Published on
Natasha Abel
Natasha Abel
Family Law Solicitor
Brindley Twist Tafft & James Solicitors

Former spouses Ant McPartlin and Lisa Armstrong have recently been back in the headlines – almost three years after their divorce – this time as they prepare for a fresh battle over custody of their pet dog.

While who might get to keep the pets in the event of a break-up may not be a priority discussion among happy couples, leading solicitor Brindley Twist Tafft & James (BTTJ) warns it can often be a contributory factor in bitter disputes among those who later break up.

Most importantly, any mutual decision should be formalised with an official legal document, or ‘pet nup’.

Most of us have probably made light-hearted comments at one time or another about keeping our pets in the event of a break-up. But without a formalised document such jokes can escalate into full-blown battles between former couples who have gone their separate ways.

We see pets as family and it is so easy for them to become yet another subject of dispute alongside the children, property, pensions and finances.

Once a couple has split up it is in the best interests of both parties to try to reach agreement between themselves over the welfare of a pet.

If no agreement is reached the couple may approach a solicitor who will suggest mediation or, as a last resort, court proceedings.

A pet nup is a detailed agreement between two partners which specifies who the pet lives with, who pays for the upkeep – food, vet bills, insurance and other costs, who decides on medical treatment and what will happen to the animal if the relationship breaks down.

We would always urge that an agreement is formally drawn up and legal advice is sought by both parties before signing the document. Then, if the relationship did break down, it avoids future conflict as to the welfare of the animal.

Some people are happy for their pets to live with one party during the week while the other takes care of them during holidays. Others are happy to look after the pet for half a week each.

As well as couples, pet nups are open to families and even friends who share pets. Although not yet formally recognised, law courts are still very likely to uphold pet nups if it can be proven that:

  • Both parties entered into the agreement freely
  • Neither party was under undue pressure or subject to misrepresentation
  • Both parties sought legal advice
  • Both parties intend that the agreement is final in governing future welfare of the pet
  • Both parties understand the implications of the pet nup
  • There is sufficient evidence within the document to prove that the pet nup is fair and in the interests of the pet.

About Natasha

Natasha Abel is a Family Law Solicitor at Brindley Twist Tafft & James Solicitors, where she deals with a whole range of family matters whether they are straight forward or very complex. She spends 40% of her working time on family matters and 60% of her working time on matrimonial matters.

As a member of Resolution, Natasha works in accordance with their Code of Practice to deal with matters in a constructive manner. Natasha works with her clients to provide support and explore all options including not only the court process, but other methods of dispute resolution to best suit their individual needs.

Natasha is also a member of the Law Society‘s Family Law Panel and has been accredited since 2011. Accreditations within the panel show that the individual is a specialist in their area of law.

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10 Steps to Divorce Financial Settlement
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10 Steps to Divorce Financial Settlement

Published on
Peter Marples
Peter Marples
Director
Fair Result

Agreeing a financial settlement is a huge milestone during the negotiation process of a divorce. It is advised that separating couples obtain a financial order that sets out this settlement, as whilst this is not mandatory, it will make this agreement legally binding.

Some lucky couples can decide on how to divide up their assets, agreeing their financial settlement without the need of going to court. However, to ensure both parties are protected, and the agreement is legally binding, a solicitor can draft a ‘consent order’ that both parties must sign.

This is then sent to the court with a completed Form A (notice of your intention to proceed with an application for a financial order), a Form D81 (statement about the parties’ financial situation to support your application for a consent order), and a £53 fee (administration fee).

However, a lot of couples fail to agree on a divorce financial settlement, which means that the court will have to decide for them.

In most cases, the process will follow the ten steps highlighted below, however, an agreement can be made at any point during this process. If that is the case, then this is agreed and signed in a legally binding court order to confirm all the details.

Providing notice of application – Form A

To kick start the financial settlement process, you will need to send a completed Form A (notice of your intention to proceed with an application for a financial order) to the courts.

This document will outline the kind of financial order you are looking for, at what stage you are at with the divorce or dissolution of a civil partnership proceeding, contact details of the separating couple or legal representatives, and information about the Mediation Information and Assessment Meeting (MIAM).

First Directions Appointment date

Once you have provided your application, the court will then set a date for the First Directions Appointment (FDA). This is the first hearing in relation to your financial dispute arising from your divorce.

This is an opportunity for the judge to consider what information each party needs to provide to create the divorce financial settlement. Both parties are encouraged to reach an agreement if possible. If this cannot be agreed, a second hearing with the FDA will be arranged to allow for further negotiation.

Financial statement – Form E

Form E (Financial Statement) is an important document in the UK divorce process since it acts as the starting point for the financial settlement negotiations.

Both parties send the court a Form E at least five weeks before the FDA hearing. You must also send a copy to each other.

The purpose of this document is to ensure both parties disclose their financial circumstances, including income, assets, liabilities, and projected financial needs.

FDA documents

These documents are filed by both parties two weeks before the FDA:

  • A concise statement of issues.
  • A chronology of events.
  • A questionnaire which is supposed to address the statement of issues.
  • A Form G, whereby you tell the court whether the FDA meeting can be used for a Financial Dispute Resolution (FDR) appointment. Typically, the FDR meeting takes place after the FDA meeting.

Costs – Form H

At this stage, each party will send the court a completed Form H just before the FDA meeting, listing any costs they have incurred.

This document sets out all the costs of the financial remedy proceedings, including costs from before and after the application was issued.

FDA meeting at court

The judge will consider both you and your partner’s financial disclosures and establish whether further information is required from either of you.

Many judges are keen to see whether a resolution meeting (skip to the final hearing section) can take place at this stage. If not, a date is set for the FDR meeting.

File proposals

Both parties will answer questionnaires, prepare evidence, and submit proposals to the court for the divorce financial settlement.

Both sides also submit a second Form H, which lists updated costs.

FDR hearing

During this hearing, the judge will focus on encouraging both parties to agree on a financial settlement, through judge-led negotiations.

Most divorcing couples settle at this stage (or soon afterwards). If not, the judge will arrange a final hearing, where both parties will need to make new offers and provide evidence.

Further proposals

The negotiations continue between both parties, including revised proposals for the divorce financial settlement which are sent to the court and to the other party.

Final hearing

This is usually the third and final court hearing within the financial remedy process.

In the absence of any agreement and following the submission of updated costs on a Form H1, a new judge will decide on your financial position and impose a settlement on your behalf.

Summary

One of the most important parts of getting a divorce is reaching a financial settlement. Many couples can agree this without the need of going to court however, but a lot of separating partners find difficulty in achieving this.

Perhaps one person is not providing their financial information, or they are not making sensible proposals, in that case, court is advisable.

By following these simple steps and receiving professional advice, you will be on your way to a Fair Result and a happy, brighter future.

Do you require specialist expertise in securing financial settlement? Get in touch with our team today.

Read more articles by Fair Result.

About Peter Marples

Peter Marples – Director of Fair Result and qualified accountant, with the determination to change the way divorce is transacted. For further advice on financial settlements and navigating divorce, use the contact details below:

  • Email
  • Give the team a call – 07500933818 or 0333 577 7009
  • Complete an enquiry form

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How do I find the right family mediator for my divorce?
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How Do I Find the Right Family Mediator for my Divorce?

Published on
Nicki Mitchell
Nicki Mitchell
Partner
Jones Myers

If you opt to settle your divorce through mediation rather than a drawn out, expensive and contentious Court settlement, choosing the right mediator is vital.

Here are some guidelines to help ensure the best possible outcome for you, your ex, and – most importantly – any children involved in your relationship breakdown.

Who chooses the mediator?

The first step if for each of you separately to attend a confidential Mediation Information Assessment Meeting (MIAM) with a qualified mediator who should  be approved by the Family Mediation Council (FMC).

You can appoint your own mediator through the FMC register which lists mediators near where you live.

At the MIAM you both discuss with the mediator key issues that need resolving. If you have children, the mediator should explain to you how your children’s voice can be heard within the process.

The mediator will explain the mediation  process and consider with you alternative ways of resolving the issues between you.  At the end of the session, you and the Mediator will come to a decision together as to whether you think mediation is suitable for you.

Why should the mediator have to be approved by the FMC?

Anyone with no training or qualifications can claim to be a family mediator.

FMC approval gives you the confidence that the mediator entrusted with this crucial role has been trained – and is qualified, and fully insured.

What is the mediator’s role after the MIAM?

If mediation is the way forward, the mediator who conducted your MIAM will set up a joint meeting with the two of you

Your chosen mediator will help you both work out key issues such as children contact and support along with dividing assets, property, pensions, and debts.

It can be very helpful in disputes relating to financial issues for you to use an FMC accredited mediator who is also a family lawyer. Although they will remain impartial in the process, they will be able to give you very useful legal information in the mediation, providing explanations as to how the legal process works and the options available to you around your properties, debt, pension, and income.

Where there is a need for you to take your own legal advice, this will be flagged up by the mediator.

Giving couples control over their divorce, mediation can be completed in as few or as many meetings as you need.  These can take place over a few months or, in some cases, weeks.  Depending on the issues, some couples are able to come to agreed proposals in just one meeting.

Findings from the Family Mediation Council highlight that agreements are reached in over 70% of cases of couples undergoing mediation.

I have seen repeatedly how mediation helps separating couples to find an agreed way forward in a constructive, positive manner which avoids going to Court, prioritises children’s well-being – and supports the long-term interests of all those involved.

Read more articles by Jones Myers.

About Nicki Mitchell

Nicki is a partner at Jones Myers Family Law Solicitors. With extensive experience in family law, Nicki specialises in the financial aspects of relationship breakdown – and particularly complex cases involving family businesses, multiple properties, and complicated pension arrangements.

Skilled in mediation and collaborative family lawyer, Nicki is also a Child Inclusive Mediator which enables her to meet with children of separated parents and hear what they want for their future.

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I'm Divorcing - Am I Eligible for Free Mediation Sessions?
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I’m Divorcing – Am I Eligible for Free Mediation Sessions?

Published on
Nicki Mitchell
Nicki Mitchell
Partner
Jones Myers

For separating couples, mediation can be a highly effective way of avoiding a lengthy, costly, and drawn-out Court divorce in which children are often caught up in the crossfire.

To help more couples in this situation, the Government has launched and extended a Family Mediation Voucher Scheme to encourage more people to undergo mediation.

What is the Family Mediation Voucher Scheme?

The publicly funded scheme helps separating couples to resolve their family law disputes outside of Court, giving them up to £500 towards the costs of mediation.

Both people involved need to agree to take part – and only Mediators like me who are authorised by the Family Mediation Council (FMC) can conduct the sessions.

How do I know if I’m eligible?

Most divorcing couples are required by law to attend a Mediation Information Assessment Meeting (MIAM). At this session a qualified mediator assesses whether mediation is appropriate for your individual case – and if you qualify for the scheme.

Eligible cases must involve a dispute or court application involving a child, although the sessions can also cover related issues around finances.

Which cases do NOT qualify for the funding?

  • If you’re applying for a consent order
  • If any children are involved in emergency proceedings, care proceedings or supervision proceedings
  • If any of the children are the subject of an emergency protection order, care order or supervision order

Where there are allegations of domestic abuse, the mediator will carefully assess with the person alleging that abuse whether mediation is suitable.

What happens if I quality?

Your mediator will apply for the voucher funding, paid directly to them when the mediation is concluded. Vouchers are limited and the mediation sessions can be attended together or separately.

Will the £500 cover all mediation costs?

This depends upon the mediator’s fees and the number of sessions needed. The voucher is intended to be a contribution towards mediation sessions.

What happens if the mediation doesn’t work?

You and your ex should take advice as to the options available.  Ultimately, if all else fails, you can make an application to go to Court.

What happens if the mediation is successful?

The arrangements agreed in mediation can be put into a document which is often known as a “parenting plan” which you can then both sign.  This provides a useful record of your agreement.

A parenting plan does not have the status of a court order.  However, court orders are not usually necessary or desirable in children cases.

The law (The Children Act 1989) works on the basis of the “non-intervention principle”. Put simply, the law recognises that parents are much better placed to parent than a court and so orders will only be made where necessary in the best interests of a child.

If you can agree, then an order is often not necessary. An order made when children are young will often become a straight jacket by the time they are older.  It makes sense for you to continue to review what your children need as they grow up, and this is much easier to do in mediation than in repeated court applications.

In our extensive experience, along with speed and cost, mediation helps to minimise the damaging fallout from a separation, enabling both parents and their children to move forward.

For more information on the scheme visit Family Mediation Voucher Scheme – GOV.UK (www.gov.uk)

Click here for more articles from Jones Myers.

About Nicki Mitchell

Nicki is a partner at Jones Myers, a niche, multi award-winning family law firm based in Leeds, Harrogate, and York.

With extensive experience in family law, Nicki specialises in the financial aspects of relationship breakdown – and particularly complex cases involving family businesses, multiple properties, and complicated pension arrangements.

A skilled mediator and collaborative family lawyer, Nicki has recently further enhanced her extensive expertise by becoming a child-inclusive mediator. The accreditation enables her to meet with children of separated parents and hear what they want for their future.

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A Guide to Financial Settlement in Divorce
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A Guide To Financial Settlement In Divorce

Published on
Chris Sweetman
Chris Sweetman
Director
Fair Results

One of the core parts of the divorce process is agreeing on a financial settlement. Especially now, with the introduction of no-fault divorce, it has become more straightforward to get divorced than ever.

However, you don’t want to be caught off guard by the future repercussions of a DIY divorce. Securing your financial future should be one of the main goals of any divorce. That’s why we’ve prepared a guide on the financial settlement.

In this article, Christ Sweetman from Fair Result is going to cover:

  • What is financial settlement?
  • What is included in the financial settlement?
  • How is child maintenance solved?
  • How can you prepare for the financial settlement?
  • Can you reach a financial settlement by yourself?
  • How does the court decide whether the settlement is fair?

What is financial settlement?

In simple terms, a financial settlement in divorce is an agreement between you and your ex-spouse on how to divide financial assets after the dissolution of your marriage or civil partnership.

The settlement can be decided on during any point of the divorce proceedings/civil partnership dissolution. Nevertheless, we would recommend signing a consent order before applying for the Final Order (formerly known as Decree Absolute).

The court usually isn’t involved until the legally binding consent order is signed – stating that both parties agree with the terms. Once the order is drafted & agreed upon, the court needs to approve it. Although, there may be exceptions when divorcees can’t agree between themselves, and the court will be required to intervene.

What is included in the financial settlement?

Matrimonial assets (financial assets acquired during the marriage) are divided as fairly as possible – the starting point of the negotiations is usually 50/50. Whilst non-matrimonial assets (financial assets acquired before the marriage) can be protected by a pre-nuptial agreement and may not get shared.

The financial settlement can include:

  • Money (investments, insurance policies, savings)
  • Property (houses, apartments, rental properties, and holiday homes)
  • Child maintenance
  • Household contents
  • Cars
  • Pension funds
  • Business interests
  • Personal items (over £500)
  • Debts, loans, and credit cards

Moreover, stay vary of the division of mortgages and debt that were accumulated throughout the marriage (otherwise known as matrimonial debt). Since matrimonial debt can be split between both parties as long as the loan was taken out for the benefit of both spouses.

How is child maintenance solved?

In its essence, both parents are legally required to support their children financially. Usually, the parent who doesn’t have regular care of the children – must pay child maintenance.

The maintenance must be paid if a child is:

  • under 16 years old
  • under 20 years old but in full-time non-advanced education (e.g., A-levels)
  • 16-17 years old, no longer in full-time education but has registered for work/training with a careers service.

An agreement can be reached between the spouses regarding children. Alternatively, the Child Maintenance Services can work out child maintenance instead. They will determine how much money needs to be paid to the parent whom the children live with. The decision is mainly based on income & financial commitments.

Additionally, if the spouse that needs to pay maintenance doesn’t live in the UK – an application can be made to the court for a child maintenance order.

How can you prepare for the financial settlement?

The best thing you can do to prepare for a financial settlement is to sort out your personal finances. As well as, roughly agreeing with your ex-spouse who continues to pay the bills and who gets what assets.

If you have any joint bank accounts, matrimonial debt, or credit cards – contact your provider as soon as you can to let them know you’re going through a divorce. Also, make sure your salary or benefits go to a separate account that’s only in your name.

In cases where you can’t trust your ex to not spend money from a joint account, you can freeze your bank cards.

Furthermore, it’s important to evaluate your current finances as an individual and a couple. Make sure to take note of: what you own; how much you owe to each other; what a potential split in assets would look like. Lastly, you should figure out how will the pensions be split.

Can you reach a financial settlement by yourself?

If you’re living in England or Wales – reaching a financial settlement in divorce by yourself is an option. This would come in a form of the consent order, which is a legally binding document that outlines the division of assets & child maintenance.

Once the order is drafted & signed, you’ll need to send copies to the court asking for final approval. This costs £53. Although, to guarantee that your consent order is legally binding you should hire a solicitor.

It’s not recommended to draft your own consent order under normal circumstances. But it’s especially important to hire a solicitor if your financial situation is complex (e.g., you’ve multiple business or property assets), you’ve been married for a long period, or communication has broken down between you and your ex.

Reaching a consent order outside the court can not only speed up your divorce process but also reduce costs. As long as the court thinks the order is fair – it will get approved without any additional court hearings.

How does the court decide whether the settlement is fair?

The court follows the guidelines set out in section 25 of the Matrimonial Causes Act to rule on the division of assets. These include:

  • Existing and future financial assets – the considerations begin with complete financial asset disclosure by both parties. Then the existing assets are evaluated, including how earning potential may change in the future.
  • Current and future financial needs – similarly to future potential earnings, the court evaluates the financial needs of both spouses. Fundamentally, the court looks at moving/re-housing costs and which party will be the primary caretaker of the children. Both parties will also be asked to provide estimated expenses to help with the ruling.
  • Standard of living before the divorce – the court tries to sustain the same standards of living, as before the divorce, for both parties. Although, this is rarely achievable, and a more likely scenario is that both spouses’ standard of living falls.
  • The age of the spouses & marriage duration – in situations where the marriage is short, financial contributions made before the marriage become more important. Whilst if the marriage is long and both spouses are older earning potential, childcare, and pensions suddenly become more important.
  • Spouses’ physical and mental health – this isn’t a common factor during considerations. But when it’s applicable the court will ask for a medical professional to provide evidence.
  • Contributions made for the benefit of the family – this tends to be a highly contested point during the financial settlement. As the Matrimonial Causes Act outlines any contributions made to looking after the home or caring for the family count. So, for example, if one spouse works, while the other takes care of the children – they would be considered equal contributors. On the other hand, things can get more complicated if one spouse brought in high-value assets into the marriage, received an inheritance, or accumulated substantial wealth after separation. In cases like these, the court will consider additional factors.

Final thoughts

Overall, having a signed and approved consent order is the first step you need to take to secure your financial future after divorce. To ensure that you won’t face any negative repercussions after the divorce – hiring a solicitor, to help you with your financial settlement, could be your best choice.

Click here for more articles from Fair Results

About Chris Sweetman

Chris Sweetman is an independent family solicitor and director of Fair Result – An award-winning law office who pride themselves on using innovative ways to help clients through the stress and complications of a marriage break down.

Chris can be contacted on 07500933818 or via email chris@fair-result.co.uk.

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How Long Does It Take to Get Divorced and Where Do I Start?
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How Long Does It Take to Get Divorced and Where Do I Start?

Published on
Chris Sweetman
Chris Sweetman
Director
Fair Results

When considering divorce the first question people often ask themselves is “how long will it take and where do I start?”

Whilst this will most likely be one of the most stressful periods of your life, with very sensible and practical considerations, you can begin a new, and much happier chapter in your life.

In today’s article, Chris Sweetman will be answering those questions and helping you understand how to initiate divorce proceedings.

No-Fault Divorce and the impact on the divorce process

Since April 2022, the whole idea of blame has been removed from divorce. Unreasonable behaviour, length of separation and adultery are all things in the past of acrimonious divorces.

Now, the process has been made much simpler so the separating parties can focus on the most important part of the divorce, including sorting out the finances and ensuring any children are still the number one focus between separating parents.

So now blame has gone, the new process allows for both parties to agree that the marriage has broken down and apply jointly for the divorce – you can still make a solo application if you want, but the new process allows for both.

Whether you apply jointly or individually, the time scales for the divorce process is the same – which takes a minimum of 26 weeks from the date of application to the final order being granted by the court service and your marriage being formally dissolved.

What is the process for divorce?

The process starts with an application, now done online, to the HMCTS Court Service portal. The court receives the application and then issues a notice to the parties for them to acknowledge the divorce process has been commenced.

Once the court is satisfied and both parties are aware the divorce has been applied for, the case must go into a 20-week holding period before a conditional order can be applied for. The thinking behind this is to give the couple one last chance to have a period to reflect on whether they do want to finally end the marriage. In all my years of being involved with the law, I have never come across a couple who in this holding period (in the new regime or previously between Nisi and Absolute) who decide they have fallen back in love again and decide to pull out of the divorce process – but the option is there at this stage.

This 20-week period should be used to effectively sort out financial arrangements and plans for the children. In simple cases, this timetable can often be kept to, but where family finances are a little more complicated and need further investigation, the timetable may slip until all matters are fully resolved.

From experience, the newly drafted divorce process should have been firmer when changing the law last year and say this 20-week period is fixed and all divorces must be concluded within the timetable. My thinking for this is that the flexibility on this period still allows lawyers to drag their feet which only has the impact of driving up costs for clients.

My preference would have been for family finances to have been resolved and then the divorce applied for. Focus the lawyers on resolving the finances quickly and efficiently and then proceed with the divorce.

Once the 20-week period has elapsed, the parties can apply for the conditional, order of divorce which is the beginning of the end road to divorce. The conditional order is granted by the court service and then another 6-week holding period is entered into before the Final order can be applied for dissolving the marriage.

Once the Final order is issued by the court and again this can be applied for online, the marriage is over, and parties are free to get on with the rest of their lives however they wish to.

Final thoughts

So now you know the process of a divorce and the steps you need to take.

You can certainly apply for a divorce yourself – it’s a relatively straightforward process online. But what you need to do, is take some expert advice about the implications of divorce on your children and the division of your marital finances. The divorce process is simple, sorting out life’s complications’ can be more difficult.

Ensure all issues surrounding the division of finances are sorted before the Final Order for divorce is granted, as once this is granted resolving the distribution of marital assets can be more complicated.

Do not forget to talk to an independent lawyer who can provide you with expert advice on all your rights, as they can provide you with guidance on the way the law looks to distribute financial assets and how the court would look to deal with disputed plans for the children.

Most importantly, work with your ex-partner to resolve all matters as amicably as possible – as it will save both parties time, money, and heartache.

Work with your ex-partners lawyers if they have them in a collaborative way to avoid stress and conflict. And be realistic about what you want to achieve in the whole divorce process.

Click here for more articles from Fair Results

About Chris Sweetman

Chris Sweetman is an independent family solicitor and director of Fair Result – An award-winning law office who pride themselves on using innovative ways to help clients through the stress and complications of a marriage break down.

Chris can be contacted on 07500933818 or via email chris@fair-result.co.uk.

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The latest updates on the Capital Gains Tax Legislation UK.
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Capital Gains Tax Changes 2023 – What to Expect

Published on
Peter Marples
Peter Marples
Director of Fair Result

On the 20th of July 2022, the government announced their plans to change the rules that apply to the transfer of assets between spouses and civil partners who are in the process of separating. The changes will be in effect from the 6th of April 2023.

The new Capital Gains Tax (CGT) measure aims to make the process fairer for those who are separating or divorcing and are in the process of distributing assets.

This article will provide detail about the CGT measure, the proposed changes, and its impact.

What is the Capital Gains Tax measure, in relation to separation and divorce?

This measure makes changes to the rules that apply to transfers of assets between separating spouses and civil partners. It gives the individuals up to three years to make no gain / no loss transfers of assets between themselves, when they cease to live together and unlimited time if the assets are in the process of a formal divorce agreement.

In addition, the measure introduces special rules which applies to individuals who have maintained a financial interest in their former family home, following a separation, and this applies when that home is eventually sold.

The objective of the measure is to make the CGT rules fairer for spouses and civil partners who are in the process of separating. It gives them more time to transfer assets between themselves without incurring a large CGT bill.

The proposed changes to Capital Gains Tax

A background to the proposed changes

The Office of Tax Simplification (OTS) highlighted in its second Capital Gains Tax report in 2021 that “the government should extend the ‘no gain no loss’ window on separation to the later of:

  • The end of the tax year at least two years after the separation event.
  • Any reasonable time set for the transfer of assets in accordance with financial agreement approved by a court or equivalent processes in Scotland.”

The government responded to this on the 30th of November 2021 and agreed that the ‘no gain no loss’ window on divorce and separation should be extended.

The proposal

The legislation will be introduced in the Spring Finance Bill 2023, which will provide the following:

  • Separating spouses or civil partners to be given up to three years after the year they cease to live together in which to make no gain / no loss transfers.
  • The no gain / no loss treatment to also be applied to assets that separating spouses or civil partners transfer between themselves during the formal divorce agreement.
  • A spouse or civil partner who maintains an interest in the former matrimonial home to be given an option to claim private residence relief (PRR) when the property is sold.
  • Individuals who have transferred their interest in the former matrimonial home to their ex-spouse or civil partner and are entitled to receive a percentage of the proceeds when the property is eventually sold, be able to apply for the same tax treatment to those proceeds when received that applied when they transferred their original interest in the property to their ex-spouse or civil partner.

What is the impact of these changes?

The latest measure will make it fairer for spouses who are going through divorce or separation and are in the process of distributing assets between themselves.

This measure is anticipated to create a positive impact on individuals, by extending the period of time available to give separating couples at least three years to make a no gain / no loss transfer between themselves for CGT purposes. It will especially benefit those who are involved with more complex proceedings, as it means that more time can be spent on the divorce proceedings and other considerations, rather than CGT.

In addition, the extension will help avoid further reduction of household income or existing accumulated household wealth through dry tax charges for those who meet the new time period. There will also be similar benefits for those who are transferring assets between themselves that are listed in a divorce or separation agreement.

Summary

As announced in July 2022, the government will be making changes to the rules that apply to the transfer of assets between spouses and civil partners who are in the process of separating. The anticipated impact of the CGT changes is meant to be positive, as it makes the separating / divorcing process fairer and provides additional time to make a no gain / no loss transfer. The changes will take effect for disposals made on or after the 6th of April 2023.

About Peter Marples

Peter Marples – Director of Fair Result and qualified accountant, with the determination to change the way divorce is transacted. For further advice on financial settlements and navigating divorce, use the contact details below:

  • Email
  • Give the team a call – 07500933818 or 0333 577 7009
  • Complete an enquiry form

You might be interested in

A Case for No-Fault Divorce
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A Case for No-Fault Divorce

Published on
Kerry Smith
Kerry Smith
Head of Family Law
at K J Smith

When it comes to the law and personal relationships, the UK is a curious mixture of the progressive and the archaic.

On the one hand, the law recognises same-sex unions, on the other the process of ending a marriage through divorce seems to be stuck in the past, specifically the 1970s and the Matrimonial Causes Act 1973.

Irretrievable Breakdown of Marriage in the 21st Century

In England and Wales a divorce can only be granted if it is shown that a marriage has broken down irretrievably and there are only 5 acceptable grounds for making this claim.

Adultery – In legal terms adultery is defined as having a sexual relationship with a member of the opposite sex, same-sex relationships are not recognized in this context.

Also adultery ceases to be recognized as grounds for divorce if the deceived party continues to live with their spouse for 6 months after discovering the affair.

Desertion/Living apart

If a husband and wife live apart for two years and both agree to a divorce

If one party leaves the other for two years and the other party requests a divorce

If a husband and wife live apart for five years and one or the other wants a divorce

Unreasonable Behaviour

One party behaves in such a way that the other cannot reasonably be expected to continue living with them.

De facto No-faults Divorce versus Legally-recognized No-faults Divorce

Looking at the list of reasons given above, it can be seen that currently the only way to be granted a divorce without some element of blame being attached to at least one of the parties is to wait at least two years, which can seem a very long time for couples looking to separate amicably and move on with their lives.

Because of this, Richard Bacon MP attempted to introduce the No-Fault Divorce Bill 2016, but this failed to get past its first commons reading.

Interestingly this appeared to be through lack of time as the second reading was postponed and postponed again, rather than through any strong, entrenched resistance to the idea itself.

There is still strong pressure from the legal community to recognize no-faults divorce, as is already the case in some other countries. In particular Resolution, an association of 6,500 family lawyers and other related professionals are continuing to campaign for a change in the law.

They argue that permitting no-faults divorce would not only free up court time, but also have a far lower impact on children.

Moving from the Blame Game to Respectful Co-parenting

The fact that there is still a requirement to demonstrate blame in divorce cases is particularly odd given that over recent years the government has heavily promoted the use of mediation during divorce.

The whole point of mediation is for couple to work constructively together to find a mutually-agreeable way forward which will always have the interests of their children (if any) at the forefront.

Even when divorce is the outcome, the idea is to move forward positively, particularly if there are children involved.

Notwithstanding this if the couple wish to divorce immediately (rather than wait two years), when the case goes to court one or the other has to shoulder the blame for the end of the marriage.

About Kerry

Kerry Smith is the head of family law at K J Smith Solicitors, a specialist family law firm who deal with a wide range of issues including divorce, domestic violence, civil partnerships and prenuptial agreements.

 

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What is the Cost Of Divorce?

What is the Cost of Divorce?

Published on
Henry Crisp
Founding Partner
Crisp & Co.

Aviva estimates the overall cost of a divorce at nearly £44,000 – or £21,979 per partner to be precise.

That seems like a whopping amount. However, the cost of legal fees per person on average makes up just £1,280 of that total.

So what are the other costs associated with divorce?

In our recent infographic, “What Is The Cost Of Divorce?” we break down the average cost of a divorce as well as providing some top tips for protecting your assets and ensuring the best outcome for you and your family.

About Henry

Henry Crisp qualified as a solicitor in 1992 and has specialised in the practice of all aspects of Family Law since then. Henry is a founding Partner of Crisp & Co.

As well as being a qualified Mediator, Henry is also a member of Resolution and is trained and practised in Collaborative Law.

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How to Start the Divorce Process

Published on
Women and Divorce
Wendi Schuller
Author of
The Global Guide to Divorce

In England and Wales, the person filing for divorce is the petitioner and in Scotland it is the pursuer.

The other spouse is the respondent in England and Wales and the defender in Scotland.

The process of divorce commences when the petitioner files the divorce petition to the court. Included with the petition is:

  • Marriage certificate
  • Issues of divorce with one of the grounds
  • What you want to receive financially

If the couple has children then a Statement of Arrangements must also be sent which includes:

  • Where they now live and future visitation plans
  • Their school and any educational or after school needs
  • Any child support requested
  • Any disability or health requirements
  • A Parenting Plan may be attached

The spouse must formally be served these papers in one of these ways:

  • The court posts these papers to your spouse adding the Acknowledgment of Service You or your solicitor will be notified if they are returned back to the court as undeliverable.
  • A bailiff can serve the divorce papers directly to your spouse. A certain form is filled out and a fee is collected for this service.
  • In Scotland there is no Acknowledgement of Service sent to the defender (respondent) spouse. They receive the initial writ from the court containing the grounds for divorce, arrangements for children, and finances. If the other spouse disagrees with any of these, then they fill out a Notice of Intention to Defend form and return it to the court.

The respondent has a week to respond and to send an Acknowledgement of Service to the court verifying that it was received and contains the following:

  • If he/she consents to the divorce
  • Objects to anything in the petition
  • Agrees or disagrees with Arrangements for Children

The respondent has twenty-eight days to file an answer if he intends to defend (contest) the divorce. He can file a ‘’cross petition’’ if he feels that the marriage is over, but not for the reason that the petitioner stated in the divorce petition.

After the respondent returns the Acknowledgement of Service to the court, a copy is posted to the petitioner or their solicitor.

The next step in the divorce process is the petitioner files an Affidavit with the court.

This is a sworn statement that is done before another solicitor (not yours) or a court official which verifies that the signature on the Acknowledgement of Service form is that of your spouse. Also you confirm what is in the Divorce Petition is correct.

Both spouses fill out the incredibly detailed, twenty-eight page Form E or Statement of Means, and give it to the court and the other solicitor. If there is to be a court hearing, then Form E is to arrive thirty-five days ahead of time.

This form is a disclosure of what one’s assets are and copies of financial records are attached to this sworn document. Mediation and collaborative divorce may use Form E to collect financial data.

Questions included in Form E or Statement of Means are:

  • Standard of living you had during your marriage and what you expect post-divorce
  • What debts you have and what is owned to you
  • Income needs for yourself and children residing with you
  • Lists of investments, bank accounts, pensions with account numbers, companies and amounts
  • Insurance with surrender value
  • Properties and their worth
  • Cars and other household assets and their value

In Scotland there is no Form E or formal disclosure document. When the spouses come to a financial agreement, the signed statement is registered in the Book of Council and Session in Edinburgh.

If there is a financial change of circumstance post-divorce, then an alteration to this agreement can be made. The Statement of Means or Form E, is not used in Northern Ireland, but rather the court asks for similar financial disclosure at the preliminary hearing.

A judge goes over the paperwork including the Statement of Arrangements for Children. If he does not have any questions and approves of the paperwork, then a Certificate of Entitlement to a Divorce Decree is issued.

He posts a copy to the Petitioner giving the date of when the Decree Nisi will be issued. No court appearance is needed for this provisional decree. The Decree Nisi is issued in the middle of the divorce proceedings. In Scotland there is no Decree Nisi.

The petitioner must wait six weeks and a day before the Decree Nisi is made absolute. The Decree Absolute is not issued automatically and must be requested.

This interim period gives time to work on any financial or child arrangements before the divorce is finalized. The spouses may be sent to mediation to negotiate either child or financial arrangements before the divorce is finalized.

If the petitioner does not apply for Decree Absolute within four and half months, then the respondent is free to do so. If neither has applied for this within a year, then a judge may mandate an explanation of why there was such a long wait. When the Decree Absolute is issued, then the divorce is finalized.

ABOUT WENDI

Wendi Schuller is a nurse, hypnotherapist and is certified in Neuro-linguistic Programing (NLP).

Her most recent book is The Global Guide to Divorce and she has over 200 published articles.

She is a guest on radio programs in the US and UK. Her website is globalguidetodivorce.com.

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Finding a Good Divorce Lawyer

Owens: “a wretchedly unhappy marriage” and What is Unreasonable Behaviour?

Published on
Vanessa Fox
Partner and Head of
Family Law
hlw Keeble Hawson

Contested divorces are rare. I have undertaken three in my 30-year career on behalf of the Petitioner.

All were successful with the grounds found by the judge to be established after hearing evidence from the parties.

Such cases are very upsetting for all sides, as the dirty linen of many years of unhappy marriage is washed in a public court.

So I considered with interest the decision of the Court of Appeal in Owens v Owens.

Mr and Mrs Owens married in 1978 and separated in February 2015 when she moved out of the family home into a rented property. In May 2015 she submitted a petition to court based on her husband’s behaviour.

She alleged that he had prioritised his work during their marriage (although he was now retired), he had mood swings and was unpleasant to her on social occasions causing her to be embarrassed.

There were other allegations but this was the gist of the petition and there was no doubt that Mrs Owens was in a very unhappy marriage.

The husband was not willing to agree to a divorce on these grounds and contested the case.

Her case came before HH J Tolson, who gave his judgement on 15 January 2016, having heard evidence from both parties. He found that the petition allegations were not sufficiently significant to entitle Mrs Owens to her divorce.

The Court of Appeal’s decision on 24 March 2017 was that it had no choice but to uphold the earlier ruling and refuse the appeal.

The trial judge had gone through an “anodyne” set of allegations with the husband and the wife and decided that they were not bad enough to warrant “behaviour such as the Petitioner cannot reasonably be expected to live with”. He found that they were exaggerated and were part of marriage.

The Court of Appeal could not find a fault with the way in which the law had been applied and it was mentioned that parliament had decreed that it is not a ground for divorce to find yourself in a wretchedly unhappy marriage.

The Court of Appeal had a lot of sympathy with Mrs Owens and hoped that Mr Owens would relent and permit her to divorce him on two years’ separation, rather than waiting five years, until February 2020 – which is essential without his consent.

The appeal judges took time to criticise at length the current “hypocrisy and lack of intellectual honesty” of our current divorce law.

Unless couples are prepared to wait two years and to separate immediately in order to start that period running, they have no choice but to “think up some allegations” for a behaviour petition.

The appeal judges made it clear that they had no criticism of the solicitors dealing with these issues every week and that the “anodyne petition” which is such a feature of a divorce lawyer’s working life was necessary to achieve a divorce in some circumstances.

There is concern among divorce lawyers that the refusal of Mrs Owen’s petition will mean many more specific unpleasant divorce petitions in future to prevent the risk of a contested case being unsuccessful for the Petitioner.

About Vanessa

hlw Keeble Hawson partner, Vanessa Fox, marked 25 years as head of the firm’s family law department in 2016.

Collaboratively trained and a qualified mediator, she has modernised South Yorkshire Resolution since becoming chair in 2013 and is also a member of the Law Society’s Family Law Panel and the Children Panel.

She can be contacted on 0114 290 6232 or atvanessafox@hlwkeeblehawson.co.uk.

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Divorce Solicitor calls for Financial Settlements

Lancashire Divorce Solicitor calls for Financial Settlements for all Divorces

Published on
Jacquie Birkett
Head of Family Law
Barber & Co Solicitors

Jacquie Birkett, a divorce solicitor and former chartered accountant, who is head of Family Law at Lancashire based law firm, Barber & Co Solicitors, has spoken out in an interview about why getting a financial settlement at the same time as divorce is so important.

Couples who opt for a divorce without coming to a financial agreement may come to regret it in the future. Even long after a divorce, an ex-spouse may make a claim in relation to financial issues arising from the breakdown of their marriage.

What part does a financial settlement play in a divorce?

It is absolutely vital for the parties to negotiate and arrive at a financial settlement on the breakdown of their marriage. Such a settlement means that both parties can move on into the future certain of their financial position and the options they now have. Any settlement reached should be set down in a final order made by the Court within the divorce proceedings.

Why is arranging a financial settlement so important?

Arranging a financial settlement provides certainty for both parties. This can help them make important decisions as they move forward into a new life and ensure that they do not need to worry about, for example, providing stability and security for their children.

What problems can arise if you do not arrange a financial settlement?

If an agreement is not reached as to how financial issues are to be dealt with on the breakdown of a marriage then this can make it extremely difficult for both parties to move on.

In principle either party can make a claim against the other in relation to those financial issues at any time in the future unless the party who wishes to make the claim has since remarried.

If a claim is made then the assets of each party will be valued at that time and not at their value when the marriage broke down thus including lottery wins, inheritances, the fruits of business success and the increase in value of property in the intervening period.

Does not having a financial settlement affect how the marital home is divided up?

If there is no financial settlement, then it is likely that one of the parties remains in the former matrimonial home often with the children of the family.

In these circumstances it is very unlikely that the spouse who has left the home will have any lump sum with which to pay a deposit on a new property for themselves. This may cause problems when the children come to stay or may prevent them staying at all if it has not been possible to source suitable alternative accommodation.

For the spouse who remains in the property there may also be problems in the future. If they stay there until the children reach 18 then the equity in the property will usually be split equally at this time.

If the property has increased in value and the spouse who has remained cannot afford to buy the other out then the property will need to be sold. If a financial settlement was reached at the time of the divorce it may have been possible to argue that equality should be departed from and for the property to have been transferred into that spouse’s sole name.

What consideration is given to spousal maintenance in a financial settlement?

This is a complex area and very much depends on the particular circumstances of each individual case. Recent decided cases have concentrated much more on the needs of the spouse who is to be paid spousal maintenance and the need to set that spouse on the road to independence rather than earlier cases when much more generous decisions were made. It is vital to get expert legal advice in this area to ensure a fair outcome.

If I own a business, is my spouse legally entitled to half of it or any future earnings?

This is another complex area and very much depends on the type of business you own and how you own it. The Court is unlikely to deprive a spouse of his or her means of earning a living. It will not kill the “golden goose” but nonetheless the business will be considered along with all the other relevant circumstances of an individual case.

Are financial assets always split 50/50?

No. The starting point is that matrimonial assets should be split on a 50/50 basis however this may be departed from after considering the children’s needs, the length of the marriage, the ages, health and income earning capacity of the parties, the standard of living enjoyed during the marriage, needs and any other relevant circumstances. As always everything depends on the facts of the individual case and there is no set formula which can be applied.

What happens if I re-marry and do not have a financial settlement from my previous marriage?

Re-marriage will have an effect on your needs and obligations as well as your resources and this will be taken into account when reaching any financial settlement.

You should also note that in certain circumstances it is not possible to make a financial claim once you have re-married so it is important to take legal advice before you do.

About Jacquie

Jacquie is the Head of Family Law at Barber & Co Solicitors.  

She manages the firm’s new office in Ramsbottom which provides a specialist family law service along with services in wills and probate, conveyancing and company related matters.

Jacquie has 14 years experience of practicing family law and deal with all aspects including:-

  • Divorce
  • Dissolution of Civil Partnerships
  • Financial issues arising from relationship breakdown
  • Pre-Nuptial and Post-Nuptial Agreements
  • Deeds of Separation
  • Cohabitation Issues
  • Children Issues
  • Grandparents’ Rights
  • Schedule 1 Children Act Applications
  • Private Adoption
  • Fertility and Parenting Law

Barber & Co Solicitors, has four offices across the North-West of England in Preston, Darwen, Ramsbottom and Clitheroe

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